We've looked at recorded performances, which come with their copyright visibly attached. But what about live performances? Theater. Dance. Symphonies. Where do these shows (and those in a similar vein) fall in the copyright scheme of things? They're not technically in a fixed medium; they're an experience. What gives?
If you're at a live performance where programs or playbills are handed out, flip through and you'll likely notice a copyright notice describing the rules for recording and sharing the performance. (Look for a page listing the company's leadership, board, and sponsors. It's often on or right around that page.) The performances themselves are not copyrighted. But they still have rights, so there are laws protecting them against being recorded without the rightsholder's knowledge or permission.
If you're not at a performance offering this physical reminder of the performers' and company's rights, it doesn't mean the performance is free to do with as you see fit.
Some performers just outright ban photography and recording at their concerts, or limit who's allowed to do these things at their concert. Ariana Grande recently sparked a "copyright vs freedom of the press" fight with photojournalists in an effort to stop people from profiting off personal pictures of her concerts. (She is correct This is a violation of her performance rights, and as the rightsholder, she has a right and a responsibility to defend that.) It's ongoing as I write this, so I'm interested to see how it's going to play out.
Other artists have restricted media coverage in favor of fan produced coverage in an effort to keep the concert experience friendly to fans. (I'm not a concertgoer myself, but I have heard tales from friends who are about media who have essentially stomped all over fans who were either making their own content or were simply trying to enjoy the show.)
At any rate, the fan content has a major problem: it gets uploaded, thereby violating the performers' rights of display and distribution and fails both the significance of content shared and economic impacts section of the Fair Use Doctrine. (Am I painting a clear enough picture here?)
For more reading, check these out:
Phone Recordings of Concerts Are More Than Just Annoying, They're Potentially Illegal: Guest Post: https://www.billboard.com/articles/business/7724330/phone-recordings-concerts-illegal-federal-bootlegging-laws
Ariana Grande Strikes Back at 'Greedy' Photogs with Full Copyright Grab: https://petapixel.com/2019/03/27/ariana-grande-strikes-back-at-greedy-photogs-with-full-copyright-grab/
The more interesting conversation here is street performers. Those who for whatever reason decide to share talents on sidewalks and in parks, and are quite possibly the biggest thorn in performance rights' side.
The problem is, quite often the street performer is covering popular work in whatever genre they're interested in. Work that is often under copyright...and therefore not available for these performances unless the proper licenses have been secured. (This is why you find guides for street artists just starting out without original material enthusiastically recommending and sharing resources for securing those licenses.)
But regardless of whether or not the performer has taken the time to secure those licenses, those watching the performer cannot record the performer without permission...and uploading a video recording opens the poster to potential copyright warnings because they don't have the rights to the covered song...and the street performer does not have the right to extend those rights to the poster.
Dizzy, yet? Yeah...
Enjoy the street performers. They're often very talented and entertaining. Follow Leo Babuta's advice and give them a dollar if their work brings you to a stop in your travels. Do talk them up to people. Do suggest the performer develop their own presence on social media if they have the proper licensing. Don't record them. Don't share the recording. You'll be doing both yourself and the street performer a favor.
Read more
The rules around capturing public performances: http://www.socialbrite.org/2009/08/16/the-rules-around-capturing-public-performances/
Are you allowed to cover copyrighted songs in a street performance? https://www.quora.com/Are-you-allowed-to-cover-copyrighted-songs-in-a-street-performance
The most important thing to remember here is that live performances may not be fixed and therefore seem fair game. But really, they're still protected by law, and making and sharing your own copies will bring you a world of YouTube strikes and demonetization. Don't do it. Just sit back and enjoy the show.
YOU ARE READING
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